Practice Makes Perfect: Supreme Court Justices Who First Served As Court Clerks

Six Supreme Court Justices served as law clerks. They are:

• Byron R. White (1962-1993) clerked for Chief Justice Fred Vinson, 1946-47.

Justice Byron R. White

• William H. Rehnquist (AJ 1972-1986, CJ 1986-2005) clerked for Justice Robert H. Jackson, 1952-53.

Justice William H. Rehnquist

• John Paul Stevens (1975 to 2010) clerked for Justice Wiley B. Rutledge, 1947-48.

Justice John Paul Stevens

• Stephen G. Breyer (1994 to Present) clerked for Justice Arthur Goldberg, 1964-65.

Justice Stephen G. Breyer

• John G. Roberts, Jr. (2005 to Present) clerked for Justice William H. Rehnquist, 1980-81.

Justice John G. Roberts, Jr.

• Elena Kagan (2010 to Present) clerked for Justice Thurgood Marshall, 1987-88.

Justice Elena Kagan

Review of “John Marshall: The Chief Justice Who Saved The Union” by Harlow Giles Unger

Unger takes the interesting approach of illuminating the contributions of John Marshall to the protection and preservation of the Constitution by describing the many ways in which Thomas Jefferson sought to subvert it. This book will educate readers about the actual operations of the early republic, rather than the usual “patriotic” myths fed to students of history. Although revered as a “Founding Father,” Jefferson was in truth often interested more in advancing his own ideas and ambition than in honoring the Constitution.

Marshall’s legacy as the 4th Chief Justice of the Supreme Court was the assurance of “the integrity and eminence of the Constitution and the federal government.” Marshall, who was the longest serving Chief Justice in American history, signed over 1,180 decisions, writing 549 of them. As Unger shows:

In the course of his Supreme Court leadership Marshall stood at the center of the most riveting – and most important – courtroom dramas in the nation’s formative years. Case by case he defined, asserted, and when necessary, invented the authority he and the Court needed to render justice, stabilize the federal government, and preserve the Union and its Constitution.”

Because of Marshall’s efforts, the judiciary became an equal branch of the federal government. But it was not a predetermined outcome. When Jefferson didn’t get his way, he used every means at his disposal to try to vitiate the judiciary. To his chagrin, however, even when he appointed his own men to the bench, they became so impressed with Marshall’s erudition, devotion to the law, and integrity, that one by one, they became Marshall men instead of Jefferson men.

To this day, the decisions written or influenced by Marshall continue to shape the American polity. From his opinion in Marbury v. Madison, in which he established the independence of the federal judiciary, to his insistence in U.S. v. Burr that no one, not even the president, is above the law, Marshall made a lasting and positive imprint on the character of the country. And while Jefferson continued to insist, even when retired, that the federal and state governments represented two independent and equal sovereigns, Marshall, in McCulloch v. Maryland, set forth the precedent that state action may not impede valid constitutional exercises of power by the Federal government. The United States would be a radically different place had it not been for “the great, the good, the wise” John Marshall, as he was described by another famous and well-respected Supreme Court Justice, Joseph Story.

Chief Justice John Marshall

Discussion: One reason I like Unger very much as a historian is that he has always been able to avoid portraying the Founding Fathers in sepia tones with golden halos. He is not loathe to point out, for example, that Jefferson was a vicious man who operated sub rosa through lackeys to destroy the careers and lives of anyone and everyone who disagreed with him. He is not reluctant to provide evidence for how much of the Declaration of Independence was lifted by Jefferson from other writings, such as those of John Locke, or how pusillanimously Jefferson behaved when the fighting broke out in the American Revolution. He also takes Jefferson to task for his treasonous acts against President John Adams when Jefferson himself was serving as Vice President. (This includes the concealment of evidence by Jefferson that would exonerate Adams from charges of impeachment, a movement for which Jefferson was leading the chorus.) And he doesn’t hesitate to speak of Jefferson’s bribes to members of the press to calumniate his opponents; his threats to start a Civil War if he were not elected in 1800; his blatant disdain of the Constitution when it got in the way of what he wanted to do; and his attempts to emasculate the judiciary so that it could not rule against any of his decisions.

Thomas Jefferson by Rembrandt Peale

Jefferson largely escapes such a close look at his behavior because of the need for the American narrative to show him as a great man, who joined other great men to create a great nation. Even the recent DNA evidence of Jefferson’s long-time affair with Sally Hemings has been downplayed, and those who acknowledge it are quick to point out Jefferson’s long-standing relationship with her, as if his alleged monogamy would make up for his taking up with a fifteen-year old girl when he was forty-six, a girl who was in his care as a slave, unable not to do his bidding. The entire time she was his mistress, she continued to serve as his slave, in addition to being pregnant almost continuously when he was in town. She was not even freed by his will when he died. But collective memory serves to establish moral, political, and social lessons, and to help form an understanding of who we are as a people. Truth can often fall by the wayside.

Unger, however, has a respect for facts.

He also has a keen eye for those early figures in our history who displayed more character, more nuance, more courage, and more loyalty to the aims of the young country. One of those was John Marshall. This well-written story will keep your attention from beginning to end. Highly recommended!

Rating: 5/5

Published by Da Capo Press, a member of the Perseus Books Group, 2014

November 12, 1816 – Thomas Jefferson Expresses Favor For Crushing Monied Corporations

On this day in history, Thomas Jefferson penned a letter to George Logan conveying his fears about the rise of aristocracy in the U.S.:

I hope we shall … crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

[George Logan (September 9, 1753 – April 9, 1821) was an American physician, farmer, legislator and politician from Philadelphia County, Pennsylvania. In 1785 he was elected to the Pennsylvania legislature, serving for four years; he was elected for another term in the late 1790s. A Jeffersonian Republican, in 1793 he helped to found the Democratic-Republican Societies. In 1798, he went to Paris to negotiate peace with the French to settle the Quasi-War. On his return, he found he had been denounced by the anti-Jeffersonian Federalists, who had passed a statute informally known as the “Logan Act,” which made it a crime for an individual citizen to interfere in a dispute between the United States and a foreign country. In 1800, the year Jefferson was elected president, Logan was elected to the U.S. Senate for a six-year term.]

Thomas Jefferson

Jefferson’s antipathy to monied corporations was not new, but it usually was couched in attacks on Alexander Hamilton. Most recently, this quote was cited by Justice John Paul Stevens in concurring in part and dissenting in part in the Opinion of the Court for Citizens United v. Federal Election Comm’n (No. 08-205, decided January 21, 2010). Justice Stevens (who retired on June 29, 2010) employed entertaining sarcasm in noting:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends.”

Justice John Paul Stevens

November 4, 1732 – Birthdate of Thomas Johnson, Future Supreme Court Justice

On this day in history, Thomas Johnson was born in Maryland. Johnson was admitted to practice law in 1760, and attended both the first and second meetings of the Continental Congress. He also helped draft the 1775 Maryland Declaration of Rights and later served as Governor of Maryland.

Thomas Johnson

Johnson was appointed to the U.S. Supreme Court in 1791. Johnson had intended to retire from what had been a busy public life because of age and infirmity. But at the request of President George Washington, who was a longtime acquaintance and business partner, Johnson made an attempt at the post of Associate Justice, only to discover shortly that “[t]he office and the man do not fit.” However, while sitting in the Court, he did deliver its first reported decision, Georgia v. Brailsford, 2 U.S. 2 Dall. 402 402 (1792). This case held that “[a] State may sue in the Supreme Court to enjoin payment of a judgment in behalf of a British creditor taken on a debt, which was confiscated by the State, until it can be ascertained to whom the money belongs.”

Johnson resigned less than a year later.

Two later cases also called “Georgia v. Brailsford” followed this one, Georgia v. Brailsford (1793) 2 U.S. 415, continuing the case of Georgia v. Brailsford (1792), and Georgia v. Brailsford (1794) 3 U.S. 1, involving jury nullification.

October 2, 1967 – Thurgood Marshall Is Sworn In As First African American Supreme Court Justice

On this day in history, Thurgood Marshall was sworn in as an Associate Justice of the United States Supreme Court, making him the first African American to hold a seat on the Supreme Court.

Marshall attended Frederick Douglass High School in Baltimore and graduated a year early in 1925. Subsequently he went to Lincoln University and included among his classmates the poet Langston Hughes and the musician Cab Calloway. He graduated from Lincoln cum laude, with a major in American literature and philosophy.

Marshall wanted to go to University of Maryland Law School, but was prevented from doing so because it admitted only whites. He thus attended law school at Howard University (a private, federally chartered historically black university in Washington, D.C.) where he was mentored by the influential dean Charles Hamilton Houston. (Houston became the Litigation Director of NAACP and played a significant role in dismantling the Jim Crow laws, which earned him the title “The Man Who Killed Jim Crow”.) In 1933 Marshall graduated first in his class. Three years later, he successfully argued a case against the University of Maryland Law School for its segregation policy in the State of Maryland Court of Appeals, ending that policy. (Pearson et al v. Murray, 182 A. 590, 169 Md. 478, 103 A.L.R. 706, Jan. 15, 1936.) You can read the decision here.

(Years later, the University of Maryland named its law library for Marshall, and the City of Baltimore honored him by placing a bronze likeness, more than eight feet tall, outside the Federal courthouse.)

Marshall became known for his high success rate in arguing before the U.S. Supreme Court and for the victory in Brown v. Board of Education, the landmark decision that desegregated public schools.

From left, attorneys George E.C. Hayes, Thurgood Marshall, and James Nabrit Jr. celebrate their victory in the Brown case on May 17, 1954

President John F. Kennedy appointed him to serve on the United States Court of Appeals for the Second Circuit, and President Lyndon Johnson appointed him to serve as the Solicitor General. In 1967, President Johnson nominated him to the United States Supreme Court.

In failing health, Marshall stepped down from the bench in 1991 even though he was reportedly unhappy that it would fall to President George H. W. Bush to name his replacement. Clarence Thomas was the man Bush nominated to replace Marshall. Marshall passed away in 1993 at the age of 84.

At his retirement, one of his former law clerks and later the Potter Stewart Professor of Constitutional Law at Yale Law School, Paul Gewirtz, wrote in a tribute:

He grew up in a ruthlessly discriminatory world — a world in which segregation of the races was pervasive and taken for granted, where lynching was common, where the black man’s inherent inferiority was proclaimed widely and wantonly. Thurgood Marshall had the capacity to imagine a radically different world, the imaginative capacity to believe that such a world was possible, the strength to sustain that image in the mind’s eye and the heart’s longing, and the courage and ability to make that imagined world real.”

(Gerwirtz’s entire tribute is moving and inspirational; you can read it online here.)

August 8, 2009 – The First Latinx Joins the Supreme Court

On this date, Sonia Sotomayor became the first Latinx to take the oath of office to the Supreme Court. It was also the first time an oath-taking ceremony at the Court was open to broadcast coverage. Previously, oath-taking ceremonies held at the Court, other than formal investiture ceremonies, were private events and not open to the media.

Sotomayor, of Puerto Rican descent, is also the Court’s 111th justice and its third female justice.

Sotomayor was born in Bronx, New York, on June 25, 1954. She earned a B.A. in 1976 from Princeton University, graduating summa cum laude and receiving the university’s highest academic honor. In 1979, she earned a J.D. from Yale Law School where she served as an editor of the Yale Law Journal.

She served as Assistant District Attorney in the New York County District Attorney’s Office from 1979-1984. She then litigated international commercial matters in New York City at Pavia & Harcourt, where she served as an associate and then partner from 1984-1992.

Sotomayor was nominated to the U.S. District Court for the Southern District of New York by President George H. W. Bush in 1991, to the U.S. Court of Appeals for the Second Circuit by President Bill Clinton, and to the U.S. Supreme Court by President Barack Obama, to replace retired Justice David Souter.

The first case she heard was Citizens United v. Federal Election Commission, in which she dissented from the majority, which held in favor of the rights of corporations in campaign finance. She has expressed liberal views throughout her years on the court. Notably, in December, 2021, she said that tossing out the landmark rulings establishing abortion rights would tarnish the court’s reputation and open the floodgates to other challenges to well-settled law. As NBC News recorded her asking during a hearing on abortion rights:

‘Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible,’ she said, while questioning Mississippi Solicitor General Scott Stewart.”

July 23, 1936 – Birthdate of Justice Anthony M. Kennedy

On this day in history, Anthony Kennedy was born in Sacramento, California. Kennedy graduated cum laude from Harvard Law School and entered private law practice in California. He befriended many politicians, including Ed Meese, and donated large sums of money to Republican officials in the state. When Meese went to work for Ronald Reagan, Meese recruited Kennedy to help Reagan draft a tax cut plan. Reagan was impressed with Kennedy and recommended him for a vacancy on the U.S. Court of Appeals for the Ninth Circuit, which Kennedy joined in 1975 as the youngest federal judge in the country.

When Supreme Court Justice Lewis Powell retired in 1987, Reagan first nominated Robert Bork, but he failed to win confirmation. Reagan then turned to Douglas Ginsburg, who withdrew himself from consideration after only nine days when allegations leaked concerning his past marijuana use. Reagan, on the advice of Meese, finally turned to Kennedy to fill the vacancy on the Supreme Court. Kennedy’s nomination encountered little resistance and he was unanimously confirmed by the Senate. He took his seat on February 18, 1988.

Justice Anthony Kennedy

On June 27, 2018, Justice Kennedy at age 81 announced his retirement a of July 31, 2018 with the statement:

It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court.”

Allegedly, Justice Kennedy made a deal with President Trump, asking that he consider appointing one of his former clerks, Brett M. Kavanaugh, to the open position. (Trump’s previous court appointment was of Neil Gorsuch, also a former law clerk of Justice Kennedy.)

As The Washington Post observed about Kennedy’s legacy:

Kennedy’s role at the center of a court equally balanced between more predictable conservatives and more consistent liberals made him the most essential member of the modern court.”

Kennedy was the fifth vote (with the four liberal justices) to uphold a woman’s right to abortion. He cast the decisive vote in the 1992 case, Planned Parenthood v. Casey, that affirmed Roe v. Wade, the 1973 landmark that made abortion legal nationwide. More recently, Kennedy was the key vote in 2016 to strike down strict regulations on abortion clinics in Texas.

But his fifth vote supported the other end of the political spectrum as well. Kennedy held special prominence in several politically-charged, highly anticipated 5 to 4 decisions, including the notorious Citizens United v. Federal Election Commission (Docket No. 08-205), for which he delivered the opinion in 2010.

You can find an extensive list of articles about and analyses of the Citizens United decision here.

You can access a very detailed report dated July 11, 2018 by the Congressional Research Service entitled “Justice Anthony Kennedy: His Jurisprudence and the Future of the Court,” here.

Supreme Court Revisionism

The New York Times reported recently:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice.”

For example, this past April, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the EPA for seeking cost-benefit authority in a 2001 case. But as the New York Times noted, that “he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.”

After law professors pointed out the mistake, Justice Scalia quickly altered the opinion, revising the text and substituting the heading “Our Precedent.”

Justice Scalia, proponent of “originalism” except in the case of his own opinions

Now, there is a way to find out quickly and easily when revisions happen. David Zvenyach, General Counsel to the Council of the District of Columbia, recently launched @Scotus_servo, a Twitter account that alerts followers whenever a change is made to a Supreme Court opinion.

The process uses an application written in JavaScript that crawls through the “slip” opinions posted to the Supreme Court website. If the application, which performs a crawl every five minutes, detects a change, it notifies the automated Twitter account, which tweets out an alert. Shortly thereafter, Zvenyach sends out a manual tweet that calls attention to the change. Here is an example:

Since Zvenyach launched his twitter account, Joshua Tauberer (@JoshData) came up with a way to highlight the changes and he tweets them out in a “before” and “after” format like this example:

These changes should make interesting complications for legal researchers.

June 14, 1943 – Justice Jackson Fixes A Star in our Constitutional Constellation

On this date, the Supreme Court decided West Virginia State Board of Education v. Barnette (319 U.S. 624).

The Court’s opinion, delivered by Justice Robert H. Jackson, held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school.

It might be noted in addition, that up until 1942, many children in America used the “Bellamy salute” to accompany the American Pledge of Allegiance. (Francis Bellamy authored the Pledge, and described the salute shown below to accompany it.) After the Fascists adopted this style of salute, Congress officially adopted the hand-over-heart stance to be used while the Pledge is recited.

American students citing the Pledge with the Bellamy salute

In West Virginia State Board of Education v. Barnette, Justice Jackson memorably wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Justice Robert H. Jackson

June 1, 1916 – Louis Brandeis Confirmed to the Supreme Court

On this date, Louis Brandeis was confirmed by the U.S. Senate as the first Jewish member of the Supreme Court. His nomination by President Woodrow Wilson was bitterly contested. The controversy surrounding Brandeis’s nomination was so great that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis’s confirmation.

Justice William O. Douglas wrote in 1964 that the nomination of Brandeis “frightened the Establishment”:

Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible.”